Application Service Provider Agreement

This Application Service Provider Agreement, with Exhibit attached, (the “Agreement”) is effective on the date last executed by the parties (“Effective Date”), by and between between Verint Americas Inc. (f/k/a, Vovici Corporation), a Delaware Corporation with its principal place of  business at 800 North Point Parkway, Alpharetta, GA 30005 (“Verint”) and you (“Customer”). If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the term “Customer” refers to such entity.

1. SERVICES.  Verint agrees to provide Customer access to the current Verint Corporation Survey Solution offering described in the Order Form attached hereto as Exhibit B and available online at the Customer designated URL as of the Activation Date. (the “Services”).  The Services are offered subject to the terms of this Agreement including restrictions and number of authorized users in Customer’s organization for which Customer has purchased user licenses as specified on the Order Form.  “Activation Date” means the day following the issuance of user passwords to Customer to access the Services as set forth in Section 5 below.  Following the Activation Date, Customer may place orders for upgrades (i.e. modifications, additions or substitutions that result in a change, improvement or addition to the Services), as well as for additional user licenses, by the parties executing one or more additional Order Forms.  Verint’s prices and terms in effect on the date of signing such additional Order Form(s) shall apply to such additional services and/or users.

The restrictions in each applicable Order Form indicate the level of access permitted to the features of the Services.  Not all types of Services my apply or be included in each Order Form.  For purposes of this Agreement, the following definitions apply:

“Administrator User” is a user that is mapped to a role that has any of the following permission bits turned on:  create user, edit user, import user, create role, edit role.
“Survey Author User” is a user that is not classified as an Administrator user, but is mapped to a role that has any of the following permission bits turned on:  create survey, edit survey, import survey, create profile, edit profile, import profile, create invitations, edit invitations, create participants, edit participants, or import participants.
“Lite Survey Author User” is a user that is classified as a Survey Author user (above), but has any of the four (4) following permission bits turned off:  Word Processor editor, Advanced Branching, Page Rotation, Block Rotations, Hierarchical Questions, Scoring, Email Triggers, Translation, and Custom Properties.
“Translator User” is a user that is not classified as an Administrator or a Survey Author or a Lite Survey Author, but is mapped to a role that has any of the translate questionnaire, invitations or responses permission bits turned on.
“Report Viewer User” is a user that is not classified as an Administrator, Survey Author, Translator User, but is mapped to a role that has the following permission bit turned on:  view reports
“Unclassified User” is a user that is not classified as an Administrator, Survey Author, Translator User or Report Viewer that can be custom based on turned on and off bits.
“Named User” is a license is used for design, deployment and Application administration.
“Report Viewer” is a license that permits access to the reporting features of the Services(s).
“Workspace” is a license that controls secure access and segmentation of Customer data within the Services(s). All users must have a unique user name and password which cannot be shared.
2. SERVICE LEVELS.  Verint will provide the Services in accordance with the Service Level Agreement (“SLA”) attached hereto as Exhibit A.

3. LICENSE GRANT.  Subject to the terms and conditions of this Agreement, Verint hereby grants to Customer, (and to each Customer employee or authorized contractor who accesses the Services by means of Customer’s account and an authorized password), a non-exclusive, non-transferable, non-sublicensable license to use the Services via the Internet, solely for internal business purposes.

4. LICENSE RESTRICTIONS.  Customer shall not, directly or indirectly, (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services; (ii) modify, translate, or create derivative works based on the Services; (iii) rent, lease, distribute, sell, resell, assign, sublicense, or otherwise transfer rights to the Services; (iv) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) remove any proprietary notices from the Services, or (vi) publish or disclose to third parties any evaluation of the Services without Verint’s prior written consent.

5. PASSWORDS  AND SECURITY. 

5.1 Passwords.  Verint shall issue to Customer (or shall authorize a Customer administrator to issue), a password for each user authorized to use Customer’s account for whom Customer has paid the applicable fee. Customer and its users are responsible for maintaining the confidentiality of all passwords and for ensuring that each password is used only by the authorized user. Customer is entirely responsible for any and all activities that occur under the Customer’s account and all charges incurred from use of the Services. Customer agrees to immediately notify Verint of any unauthorized use of the Customer’s account  or any other breach of security known to Customer.

5.2 Security.  It is understood and agreed that Verint will maintain the Services at a reputable third party Internet service provider and hosting facility and will implement commercially reasonable security precautions to prevent unauthorized access to the Customer Data (as defined below).

6. CUSTOMER SUPPORT.  Except as expressly stated on the Order Form, the Fees set forth in the Order Form include Verint’s standard telephone, email and web support.  Customer will name two (2) support contacts that will be designated to contact Verint Customer Support to report issues or request assistance.  Refer to Exhibit A for Customer Support Program details including SLA criteria, hours of operation and contact information.

7. CUSTOMER DATA.  As between Verint and Customer, it is understood and agreed that Customer owns all data, information or material that Customer enters into the Services or has entered on its behalf (“Customer Data”). Verint may access Customer Data from time to time solely for purposes of support, administration and invoicing related to Customer’s use of the Services.  Except as permitted in this Agreement, Verint will not edit, delete or disclose the contents of Customer Data unless authorized by the Customer or unless Verint is required to do so by law or court order. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Customer Data.  Verint Corporation reserves the right to establish a maximum amount of memory or other computer storage and a maximum amount of Customer Data that Customer may store, post or transmit on or through the Services.

8. CUSTOMER OBLIGATIONS.  Customer shall be solely responsible for the actions of its users while using the Services and the contents of its transmissions through the Services (including, without limitation, Customer Data). Customer agrees: (1) to abide by all local, state, national, and international laws and regulations applicable to Customer’s use of the Services, including without limitation all laws regarding the transmission of technical data exported from the United States through the Services; (2) not to upload or distribute in any way files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Services or another’s computer; (3) not to use the Services for illegal purposes; (4) not to interfere or disrupt networks connected to the Services; (5) not to post, promote or transmit through the Services any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, hateful, racially, ethnically or otherwise objectionable material of any kind or nature; (6) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (7) not to interfere with another customer’s use and enjoyment of the Services or another entity’s use and enjoyment of similar services; (8) not to engage in contests, chain letters or post or transmit “junk mail,” “spam,” “chain letters,” or unsolicited mass distribution of email; and (9) to comply with all regulations, policies and procedures of networks connected to the Services. Customer acknowledges and agrees that Verint neither endorses the contents of any customer communications or Customer Data nor assumes any responsibility for any threatening, libelous, obscene, harassing or offensive material contained therein, any infringement of third party intellectual property rights arising therefrom or any crime facilitated thereby. Verint may remove any violating content posted on the Services or transmitted through the Services, without notice to Customer.

9. FEES AND TAXES.

9.1 Fees.  Customer agrees to pay the applicable fee(s) set forth in the Order Form within 30 days of the invoice date. All Fees are quoted and payable in U.S. Dollars, and except as otherwise provided in this Agreement, are non-refundable.  In addition to such Fees, Customer shall pay all applicable sales, use and other taxes or duties (excluding taxes based on Verint’s income).

9.2 Payments.  Fees for the Services will be invoiced in advance in accordance with payment frequency and other terms set forth in the applicable Order Form.  Unless otherwise stated, Fees are due within 30 days from the invoice date.  Any payment not received from the Customer by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), at the lower of 1.5% of the outstanding balance per month (being 18% per annum), or the maximum rate permitted by law, from the date such payment is due until the date paid. Customer shall also pay all sums expended (including reasonable legal fees and costs) in collecting overdue payments. If Customer believes that the bill is incorrect, Customer must contact Verint in writing within 30 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.

10. TERM.  The Services shall commence on the Effective Date and shall continue for a period of one (1) year or such other period specified in the Order Form.  Thereafter, this Agreement will automatically renew at Verint’s then current list prices, for additional one (1) year periods, unless either party gives the other party notice of its intent not to renew at least ninety (90) days prior to the end of the initial term or any renewal term. Termination will be effective at the end of the applicable term in which such notice is received. Customer shall be responsible for all Fees for the applicable term in which termination occurs, and Verint shall not issue any refunds for such term.

11. TERMINATION.

11.1 Breach.  Except as provided in Section 11.3 below, either party may terminate this Agreement upon written notice if the other party has breached a material term of this Agreement and has not cured such breach within thirty (30) days of receipt of notice from the non-breaching party specifying the breach.  If any Customer contact information is false or fraudulent, Verint may terminate Customer’s access to the Services without notice in addition to pursuing any other legal remedies.

11.2 Insolvency.  Either party may terminate this Agreement if (i) the other party has a receiver appointed for it or its property; (ii) the other party makes an assignment for the benefit of creditors; (iii) any proceedings are commenced by, for or against the other party under any bankruptcy, insolvency or debtor’s relief law; or (iv) the other party is liquidated or dissolved.

11.3 Failure to Pay/Customer Conduct.  Verint may suspend or terminate the Services, at its sole option, with or without notice to Customer if: (i) any payment is delinquent by more than sixty (60) days, or (ii) Customer breaches any provision of Section 8.2.

11.4 Effect of Termination.  Verint shall not be liable to Customer or any third party for suspension or termination of the Services in accordance with this Agreement. If Customer or Verint terminates this Agreement, Customer will be obligated to pay the balance due for all Services provided prior to termination.  Upon the effective date of expiration or termination of this Agreement for any reason, whether by Customer or Verint, Customer’s right to use the Services shall immediately cease.  Sections 7, 8.2, 8.3, 11, 12, 13, 14.2, 16 and 17 of this Agreement shall survive its expiration or termination for any reason.  Verint shall retain Customer Data for a period of thirty (30) days after expiration or termination of this Agreement.  Customer may request that Verint conduct a mass export of Customer Data, and Verint agrees to provide such services at its then current rates on a time and materials basis. After thirty (30) days, Verint may delete and destroy all Customer Data without notice or further liability to Customer.

12. PROPRIETARY RIGHTS.  Customer acknowledges that the Services and all content contained therein, including but not limited to text, software, music, sound, photographs, video, graphics, and third party materials and advertisements, excluding any Customer Data, (collectively, “Content”) is proprietary to Verint or such third parties, and Verint or such third parties retain exclusive ownership of the same throughout the world, including but not limited to all related copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights thereto. This Agreement does not transfer any right, title or interest in the Services or the Content to the Customer.

13. CONFIDENTIALITY.

13.1 Obligations.  Each of the parties agrees to maintain in confidence any Confidential Information of the other party, whether written or otherwise, disclosed by the other party in the course of performance of this Agreement (‘Confidential Information’).  For purposes of this Agreement “Confidential Information” means nonpublic information that a party to this Agreement (“Disclosing Party”) designates as being confidential to the party that receives such information (“Receiving Party”) or which, under the circumstances surrounding disclosure ought to be treated as confidential by the Receiving Party. “Confidential Information” includes, without limitation, information in tangible or intangible form relating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing Party product, Disclosing Party’s business policies or practices, and information received from others that Disclosing Party is obligated to treat as confidential.  The parties further hereby agree that Confidential Information includes the terms and conditions of this Agreement, and any discussions related thereto. The Receiving Party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the parties’ respective rights therein. Each party agrees to restrict access to the Confidential Information of the other party to those employees or agents who require access in order to perform hereunder, and, except as otherwise provided, neither party shall make Confidential Information available to any other person or entity without the prior written consent of the other party.

13.2 Exclusions. Confidential Information shall not include any information that is (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the Receiving Party; (iii) subsequently disclosed to the Receiving Party on a non-confidential basis by a third party not having a confidential relationship with the other party hereto that rightfully acquired such information; or (iv) communicated to a third party by the Receiving Party with the express written consent of the other party hereto.   A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process shall not be considered a breach of this Agreement; provided the Receiving Party provides prompt notice of any such subpoena, order, or the like to the other party so that such party will have the opportunity to obtain a protective order or otherwise oppose the disclosure.

13.3 Destruction or Return of Confidential Information.  Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party, or destroy, as the parties agree, all copies of the other party’s Confidential Information.  All copies, notes or other derivative material relating to the Confidential Information shall be promptly retrieved or destroyed, as agreed, and no such material shall be retained or used by the receiving party in any form or for any reason.

14. LIMITED WARRANTY AND WARRANTY DISCLAIMER.

14.1 Limited Warranty.  Verint warrants that the Services will perform substantially in accordance with the functions described in the documentation provided by Verint under normal use and circumstances by authorized users of the Services.  For any breach of this warranty, the Customer’s sole and exclusive remedy and Verint’s  sole and excusive liability, shall be for Verint to correct any reported failure in the Services causing a breach of this warranty.  If Verint is unable to provide such correction, the Customer shall be entitled to recover that prepaid portion of the Fees in respect of the non-conforming Services.

14.2 Disclaimer.  EXCEPT AS EXPRESSLY STATED IN SECTION 14.1, THERE ARE NO WARRANTIES OR CONDITIONS (WHETHER IMPLIED OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE) FOR THE SERVICES OR SUPPORT. VERINT CORPORATION DISCLAIMS ALL STATUTORY OR IMPLIED WARRANTIES AND CONDITIONS INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY OR FITNESS FOR ANY PURPOSE, PARTICULAR, SPECIFIC OR OTHERWISE.  VERINT CORPORATION DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL MEET THE CUSTOMER’S REQUIREMENTS.

15.INDEMNIFICATION.

15.1 By Verint. Verint shall indemnify, defend, or at its option settle, any third party claim or suit against Customer based on a claim that the Services infringes any United States patent, copyright, trademark or trade secret and Verint shall pay any final judgment entered against Customer in any such proceeding or agreed to in settlement; provided (a) Verint is promptly notified in writing of such claim or suit, (b) Verint or its designee has sole control of such defense and/or settlement, and (c) Customer gives all information and assistance requested by Verint or such designee.  To the extent that use of the Services is enjoined, Verint may at its sole discretion either (i) procure for Customer the right to use the Services, (ii) replace the Services with other suitable products, or (iii) refund the prepaid portion of the Fee(s) paid by Customer for the Services or the affected part thereof.  Verint shall have no liability to the extent a claim is based upon (a) use of the Services in combination with software or hardware not provided by Verint if infringement would have been avoided in the absence of such combination; (b) modifications to the Services not made by Verint, if infringement would have been avoided by the absence of such modifications; (c) use of any version other than a current release of the Services if infringement would have been avoided by use of a current release, or (d) any action or omission of Customer for which Customer is obligated to indemnify Verint under Section 15.2 below.

THIS SECTION 15 STATES VERINT’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT AND MISAPPROPRIATION CLAIMS BASED ON THE SERVICES.

15.2 By Customer.  Customer shall indemnify, defend, or at its option settle, any third party claim or suit against Verint based on a claim: (i) of any breach of Section 8.2 of this Agreement by Customer, its affiliates, employees agents, successors and assigns; and (ii) relating to or based upon the Customer Data or the activities conducted by Customer using the Services; and Customer shall pay any final judgment entered against Verint in any such proceeding or agreed to in settlement; provided (a) Customer is promptly notified in writing of such claim or suit, (b) Customer or its designee has sole control of such defense and/or settlement, and (c) Verint gives all information and assistance requested by Customer or such designee.

16. LIMITATION OF LIABILITY. 

16.1 Limitation on Direct Damages.IN NO EVENT SHALL VERINT’S AGGREGATE LIABILITY, IF ANY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER IN THE TERM IN WHICH THE ACTION AROSE, FOR THE SERVICES THAT GAVE RISE TO THE DAMAGES CLAIMED, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT OR TORT, INCLUDING NEGLIGENCE.

16.2Disclaimer of Consequential Damages.  IN NO EVENT SHALL VERINT OR ITS SUPPLIERS BE LIABLE (A) FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR (B) TO THIRD PARTIES CLAIMING THROUGH CUSTOMER; EVEN IF VERINT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

16.3     Essential Purpose.  The essential purpose of this Section 16 is to limit the potential liability of the parties arising under this Agreement.  The parties acknowledge that the limitations set forth in this Section 16 are material to the level of Fees due and payable under this Agreement, and that, were Verint to assume any further liability, such Fees, would out of necessity,   been set much higher.

17. GENERAL. All notices to a party shall be in writing and sent to the addresses specified in this Agreement and shall be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Neither this Agreement nor any Services license may be assigned or transferred by Customer, by merger, operation of law or otherwise, without Verint’s prior written consent.  This Agreement, together with all addenda, schedules, and exhibits, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements and understandings between the parties relating to the subject matter hereof.  This Agreement may be amended or superseded only by a written instrument signed by both parties.  This Agreement shall be governed by the laws of the Commonwealth of Virginia, excluding its conflict of laws rules, and the parties hereby agree that any and all disputes related to or arising out of this agreement shall be subject to the exclusive jurisdiction of the federal and/or state courts, as applicable, situated in the Commonwealth of Virginia.  The parties agree that the Uniform Computer Information Transactions Act (UCITA) is hereby excluded from application to this Agreement and the parties agree that the United Nations Convention for the International Sale of Goods is excluded in its entirety from this Agreement.  Any provision of this Agreement held to be unenforceable shall not affect the enforceability of any other provisions of this Agreement.  In the event of any conflict between the terms of this Agreement and the terms of any exhibit or attachment, the terms of this Agreement shall control.  Neither party shall be in default if its failure to perform any obligation under this Agreement, other than payment of Fees due and owing, is caused by supervening conditions beyond that party’s reasonable control, including acts of God, civil commotion, war, strikes, labor disputes, third party Internet service interruptions or slowdowns, vandalism or “hacker” attacks, acts of terrorism or governmental demands or requirements (“Force Majeure Events”).  Customer agrees that Verint may use Customer’s name and logo to identify Customer as a customer of Verint on Verint’s website, and as a part of a general list of Verint’s customers for use and reference in Verint’s corporate, and marketing literature.  Additionally, Customer agrees that Verint may issue a press release identifying Customer as a Verint customer, subject to Customer’s prior approval which will not be unreasonably withheld or delayed.  The parties agree that any press release or other public comments issued by either party relating to this Agreement, any dispute under this Agreement, or Customer’s use of the Services, will be prepared jointly between Verint and Customer and will be issued upon mutual agreement of the parties.  Pre-printed terms and conditions on or attached to any Customer purchase order shall be of no force or effect.

EXHIBIT A

SERVICE LEVEL AGREEMENT
AND CUSTOMER SUPPORT PROGRAM

SERVICE LEVEL AGREEMENT

1.SERVICE AVAILABILITY. Verint Corporation will use commercially reasonable efforts to ensure that the Services will be available 24 hours per day, 7 days per week, excluding any Scheduled Downtime or Unscheduled Downtime events, each as defined below.  The Service availability shall be measured as the total number of minutes in a month minus the total number of minutes in that month that comprise Schedule Downtime or Unscheduled Downtime events (“Scheduled Uptime”).

2. SCHEDULED DOWNTIME. A minimum of (7) days advance notice will be provided for all scheduled downtime to perform system maintenance, backup and upgrade functions for the Services (the “Scheduled Downtime”) if the Services will be unavailable due to the performance of system maintenance, backup and upgrade functions.  Scheduled Downtime will not exceed eight (8) hours per month and will be scheduled in advance during off-peak hours (based on ET).  Verint Corporation will notify the Customer administrator via email of any Scheduled Downtime that will exceed (2) hours.
The duration of Scheduled Downtime is measured, in minutes, as the amount of elapsed time from when the Services are not available to perform operations to when the Services become available to perform operations.  Daily system logs will be used to track Scheduled Downtime and any other Service outages.

3. UNSCHEDULED DOWNTIME. Unscheduled Downtime is measured in minutes, and is defined as any time outside of the Scheduled Downtime when the Services are not available to perform operations, excluding any outages caused by the failure of any third party vendors, the Internet in general, or any emergency or force Force Majeure Event.  The measurement is in minutes.

4. SERVICE LEVEL CREDITS. If Verint Corporation does meet not the Scheduled Uptime levels set forth above, Customer will be entitled, upon written request, to a Service Level Credit to be calculated as follows:

• If Scheduled Uptime is at least 99.95% of the month’s minutes, no Service Level Credit is awarded.
• If Scheduled Uptime is 99.75% to 99.94% (inclusive) of the month’s minutes, Customer will be eligible for a credit of 5% of a monthly average fee derived from one-twelfth (1/12th) of the then-current annual fee paid to Verint Corporation.
• If Scheduled Uptime is 99.50% to 99.74% (inclusive) of the month’s minutes, Customer will be eligible for a credit of 7.5% of a monthly average fee derived from one-twelfth (1/12th) of the then-current annual fee paid to Verint Corporation.
• If Scheduled Uptime is less than 99.50% of the month’s minutes, Customer will be eligible for a credit of 10.0% of a monthly average fee derived from one-twelfth (1/12th) of the then-current annual fee paid to Verint Corporation.

Service Level Credits shall be Customer’s sole and exclusive remedy in the event of any failure to meet the Service Levels.  Service Level Credits will be applied to the next invoice following Customer’s request and Verint Corporation confirmation that credits are applicable.

CUSTOMER SUPPORT PROGRAM

Customer Support Contacts

Customer may have up to two (2) Primary Technical Contacts. Primary Technical Contacts must have completed product training and are internal experts with the Verint product.  Customer can designate up to five (5) other Named Users who have access to the Verint Knowledge Base and Forums.

Contacting Tech Support

Hours of Operation
Customers can obtain live technical assistance from Customer Support Monday to Friday from 8 a.m. to 8 p.m. Eastern Time with the exception of U.S. Federal Holidays.
Online Resources (Knowledge Base and Forums) are available 24 hours a day, 7 days a week, 365 days a year.

Service Levels

Support Parameters

Verint maintains internal escalation/notification procedures to ensure that timely response and feedback is provided for all open inquiries.  Verint will provide support for reproducible problems in the current and previous Major Release of the applicable Verint solution. Prior releases will not be supported.  A Release shall mean all releases of new code that are designed to operate, provide corrections, add significant new functions or substantially improve the performance of the software.  Releases include Major Releases and Minor (or Point) Releases.  A Major Release refers to a commercially available release of the product.  A Minor (or Point) Release refers to all other additions, modifications or revisions of the product which do not result in a Major Release.